ke 'flipping a coin': Why it's so hard to test drivers for pot

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The federal government plans to invest $81 million to train police officers to smoke out drivers impaired by pot across Canada while using a test experts say is flawed and that is being challenged in a U.S court.

An investigation by The Fifth Estate shows the tests done by police drug recognition experts (DREs) can lead to false arrests, are prone to police bias and according to one scientific expert are no better at detecting drug-impaired drivers than "flipping a coin."

"You can't hijack science in the name of law enforcement," says David Rosenbloom, a clinical professor in the Department of Medicine at McMaster University in Hamilton, Ont.

"We know that with high enough concentrations [of marijuana] in the blood that driving is impaired so it's not that we don't need tests of impairment, it's just that we need valid tests of impairment, and at this point in time we don't have them."


Prof. David Rosenbloom of McMaster University says the science is just not there when it comes to proving drug impairment. (CBC)

The DRE test is a 12-step process that involves examining a suspect's vital signs, eyes, balance and ability to concentrate and then rendering an opinion.

• Watch "Driving High: Is the test for weed reliable" on The Fifth Estate on CBC-TV Friday at 9 p.m.
• Province way behind in dealing with marijuana-impaired driving, says lawyer
• Government releases legal limits for drugged driving but can't say how much pot is too much

For Rosenbloom, the science of the test simply is not there.

"It's equivalent of flipping a coin, it's 50/50 as to whether we know the person was impaired or not."

Taxpayers 'should be outraged'
Meanwhile, the American Civil Liberties Union in Georgia recently launched what is believed to be the first civil challenge in the U.S. on behalf of four drivers wrongfully arrested by police officers trained as drug recognition experts.

The ACLU has a warning for Canada.

"I think that Canadian police departments need to think twice about pouring millions or billions of dollars into a failed system that has not worked in the United States," says Sean Young, legal director for the ACLU in Georgia.

"And the taxpayers of Canada should be outraged that their precious dollars are being wasted on this program that just results in more innocent people being thrown into jail."

Drug recognition experts have been operating in Canada since the 1990s. However, Canada is set to significantly increase their numbers as marijuana is legalized.


In preparation for the upcoming legalization of marijuana, the federal government is planning for training of an additional 750 drug recognition experts over the next five years. (CBC)

In preparation for legal weed coming in July, Public Safety Canada recently announced it's going to invest up to $81 million in new law enforcement training, paying to train 750 more drug recognition experts over the next five years and more than 3,000 officers to administer a shortened version of the observational test known as the Standardized Field Sobriety Test.

Canada's minister of public safety, Ralph Goodale, declined a request to be interviewed for The Fifth Estate investigation.

In a statement, Goodale said he believes there is enough evidence to support the use of DREs, pointing to a recent review by the Canadian Centre on Substance Use and Addiction that found DREs are "valid and reliable."

• Click here to read Goodale's full statement

That same review, however, also cautions that when it comes to detecting impairment, DREs have a "modest degree of accuracy," between 43 and 62 per cent.

A recent report from Statistics Canada shows our system for convicting high drivers fails almost half of the time. Suspected drug-impaired drivers walk free nearly 40 per cent of the time, or twice as often as alcohol-impaired drivers.

In his statement, Goodale acknowledges more research in this area is "critical," but is also hopeful a new saliva test in the works will help police determined if someone has recently consumed drugs.

'I knew I was innocent'
Two Ontario drivers came face to face with the flaws in Canada's system last year when they were arrested for impaired driving by drugs after separate car accidents.

Corinne Fardy slammed into a parked construction vehicle while she was travelling on Highway 11 near Parry Sound.

The police report into her accident, obtained by The Fifth Estate, says they found her to be "unsteady on her feet," she "had a white coated tongue" and that she was "fumbling" and had "poor dexterity."

She was arrested, handcuffed and put in jail. In the end, a drug recognition expert conducted the test and concluded she was impaired by drugs and charged her with the criminal offence of driving while impaired by drugs.

'I was in shock.' - Corinne Fardy
"I was in shock. I knew I was innocent," she told The Fifth Estate.

The unsteadiness, she says, was caused by injuries to her legs from her airbags going off. Her tongue is always coated white, she says, from medication she takes and she was in shock from the accident, which she says explains her shakiness.

After three months, the police dropped the charges, accepting that the symptoms observed by the DRE could have been caused by the accident.

"I was upset with the way they treated me."

Slurring speech
Like Fardy, Harry Rudolph was arrested for drug-impaired driving by last year. Once again, the police misunderstood his symptoms, this time with serious consequences.

The Toronto man was driving along a county road in Britt, Ont., when he swerved and hit a boat ramp on the side of the road. Then the police showed up.

Harry Rudolph recovers from a stroke in the West Parry Sound Health Centre on Nov. 1, 2017. (Dawn Phillips)

"The police insisted Harry was high," his friend Dave Phillips says.

Rudolph was "slurring speech, disoriented, stumbling, and when they got him out of the vehicle he wasn't able to stand real well," Phillips said.

But Rudolph wasn't high. He was having a stroke. Instead of getting prompt medical care, Phillips says Rudolph was arrested for drug-impaired driving and put in a holding cell for the next 5½ hours.


Dave Phillips says the police decision to place his friend Harry Rudolph in a holding cell for 5½ hours after he was arrested for drug-impaired driving has affected Rudolph's life forever. (CBC)

That decision, says Phillips, has forever affected his friend's life. Rudolph can now barely talk and has serious memory problems.

"Harry could've gotten the medications that they give to a stroke victim and right now we may not even be having this conversation."

The Ontario Provincial Police say they can't talk about the arrest for privacy reasons. Rudolph now has a civil lawyer looking at his case.

Detecting the pot smoker
When a police officer suspects you've been driving high, typically they ask you to perform a short roadside test that involves looking at your eyes and walking in a straight line.

If you fail that test, you are arrested and taken to a police station where a DRE conducts a much more involved test, 12 steps in total, over the course of about an hour.

For step 12, the police take a fluid sample, typically urine, to confirm or refute the findings of the DRE.

The RCMP calls this a "key" part of the test.


The test done by a drug recognition expert involves 12 steps conducted over about an hour. (CBC)

Steve Maxwell, a retired Ontario Police officer and instructor for drug recognition experts, recently conducted a demonstration of the test for The Fifth Estate.

He was presented with three people, including one who has a medical marijuana licence and recently smoked. Maxwell succeeded in spotting the smoker.

"People get killed, so that's why we need to detect these people and test them," says Maxwell.

He says high drivers represent "the same danger as any other driver that's impaired by alcohol. The end result is the same."

Maxwell believes the test works. He points to a 2009 study that shows Canadian drug recognition experts successfully identified the class of drug more than 90 per cent of the time, in more than 1,000 cases.

But spotting actual impairment, he says, is more difficult.

"It's not a machine that spits out a number. It's subjective. DRE evaluation is subjective from the beginning," he says.

'Hard time being unbiased'
Maxwell now works as an expert witness, defending people wrongfully arrested as a result of tests by drug recognition experts.

"What I'm finding or that I'm seeing is that police officers have a really hard time being unbiased," he says.

When a suspected drug-impaired driver is arrested and brought in, the DRE often knows the arresting officer, and might feel pressure to confirm what the arresting officer believes.

"Now I'm going to evaluate them," says Maxwell. "I don't want to disappoint my buddy."

Rosenbloom goes further, arguing the test should be thrown out all together.

"I think the answer is to develop tests that are validated in a scientifically appropriate way and have these implemented instead of the pseudosciences being applied today."

Rosenbloom is equally concerned with the federal government's plan to introduce saliva tests. While there is no timeline for that, the government's new impaired driving law allows them to be used by police.


Steve Maxwell taught other police officers how to administer a drug recognition evaluation before he retired and became an expert witness in Ottawa. (CBC)

The tests won't detect impairment, but will detect recent drug use. Rosenbloom says, at least so far, they've been shown to be just as unreliable as DREs.

The Supreme Court of Canada recently decided drug recognition experts in Canada can automatically testify as experts.

But Rosenbloom points to a series of court decisions in the U.S. that went the other way. Courts in six different states refused to let them testify as experts.

A Maryland court was blunt. In a 2012 decision it said: "The training police officers receive does not enable DREs to accurately observe the signs and symptoms of drug impairment, therefore, police officers are not able to reach accurate and reliable conclusions."

"I think that Canadian police departments need to think twice about pouring millions or billions of dollars into a failed system that has not worked in the United States," says Sean Young, legal director for the ACLU in Georgia.

"And the taxpayers of Canada should be outraged that their precious dollars are being wasted on this program that just results in more innocent people being thrown into jail.

IF YOU’VE SPENT time with marijuana—any time at all, really—you know that the high can be rather unpredictable. It depends on the strain, its level of THC and hundreds of other compounds, and the interaction between all these elements. Oh, and how much you ate that day. And how you took the cannabis. And the position of the North Star at the moment of ingestion.

OK, maybe not that last one. But as medical and recreational marijuana use spreads across the United States, how on Earth can law enforcement tell if someone they’ve pulled over is too high to be driving, given all these factors? Marijuana is such a confounding drug that scientists and law enforcement are struggling to create an objective standard for marijuana intoxication. (Also, I’ll say this early and only once: For the love of Pete, do not under any circumstances drive stoned.)

Sure, the cops can take you back to the station and draw a blood sample and determine exactly how much THC is in your system. “It's not a problem of accurately measuring it,” says Marilyn Huestis, coauthor of a new review paper in Trends in Molecular Medicine about cannabis intoxication. “We can accurately measure cannabinoids in blood and urine and sweat and oral fluid. It's interpretation that is the more difficult problem.”

You see, different people handle marijuana differently. It depends on your genetics, for one. And how often you consume cannabis, because if you take it enough, you can develop a tolerance to it. A dose of cannabis that may knock amateurs on their butts could have zero effect on seasoned users—patients who use marijuana consistently to treat pain, for instance.

The issue is that THC—what’s thought to be the primary psychoactive compound in marijuana—interacts with the human body in a fundamentally different way than alcohol. “Alcohol is a water-loving, hydrophilic compound,” says Huestis. “Whereas THC is a very fat-loving compound. It's a hydrophobic compound. It goes and stays in the tissues.” The molecule can linger for up to a month, while alcohol clears out right quick.


But while THC may hang around in tissues, it starts diminishing in the blood quickly—really quickly. “It's 74 percent in the first 30 minutes, and 90 percent by 1.4 hours,” says Huestis. “And the reason that's important is because in the US, the average time to get blood drawn [after arrest] is between 1.4 and 4 hours.” By the time you get to the station to get your blood taken, there may not be much THC left to find. (THC tends to linger longer in the brain because it’s fatty in there. That’s why the effects of marijuana can last longer than THC is detectable in breath or blood.)

So law enforcement can measure THC, sure enough, but not always immediately. And they’re fully aware that marijuana intoxication is an entirely different beast than drunk driving. “How a drug affects someone might depend on the person, how they used the drug, the type of drug (e.g., for cannabis, you can have varying levels of THC between different products), and how often they use the drug,” California Highway Patrol spokesperson Mike Martis writes in an email to WIRED.

Accordingly, in California, where recreational marijuana just became legal, the CHP relies on other observable measurements of intoxication. If an officer does field sobriety tests like the classic walk-and-turn maneuver, and suspects someone may be under the influence of drugs, they can request a specialist called a drug recognition evaluator. The DRE administers additional field sobriety tests—analyzing the suspect’s eyes and blood pressure to try to figure out what drug may be in play.

The CHP says it’s also evaluating the use of oral fluid screening gadgets to assist in these drug investigations. (Which devices exactly, the CHP declines to say.) “However, we want to ensure any technology we use is reliable and accurate before using it out in the field and as evidence in a criminal proceeding,” says Martis.

Another option would be to test a suspect’s breath with a breathalyzer for THC, which startups like Hound Labs are chasing. While THC sticks around in tissues, it’s no longer present in your breath after about two or three hours. So if a breathalyzer picks up THC, that would suggest the stuff isn’t lingering from a joint smoked last night, but one smoked before the driver got in a car.

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This could be an objective measurement of the presence of THC, but not much more. “We are not measuring impairment, and I want to be really clear about that,” says Mike Lynn, CEO of Hound Labs. “Our breathalyzer is going to provide objective data that potentially confirms what the officer already thinks.” That is, if the driver was doing 25 in a 40 zone and they blow positive for THC, evidence points to them being stoned.

But you might argue that even using THC to confirminebriation goes too far. The root of the problem isn’t really about measuring THC, it’s about understanding the galaxy of active compounds in cannabis and their effects on the human body. “If you want to gauge intoxication, pull the driver out and have him drive a simulator on an iPad,” says Kevin McKernan, chief scientific officer at Medicinal Genomics, which does genetic testing of cannabis. “That'll tell ya. The chemistry is too fraught with problems in terms of people's individual genetics and their tolerance levels.”

Scientists are just beginning to understand the dozens of other compounds in cannabis. CBD, for instance, may dampen the psychoactive effects of THC. So what happens if you get dragged into court after testing positive for THC, but the marijuana you consumed was also a high-CBD strain?

“It significantly compounds your argument in court with that one,” says Jeff Raber, CEO of the Werc Shop, a cannabis lab. “I saw this much THC, you're intoxicated. Really, well I also had twice as much CBD, doesn't that cancel it out? I don't know, when did you take that CBD? Did you take it afterwards, did you take it before?”

“If you go through all this effort and spend all the time and money and drag people through court and spend taxpayer dollars, we shouldn't be in there with tons of question marks,” Raber says.

But maybe one day marijuana roadside testing won’t really matter. “I really think we're probably going to see automated cars before we're going to see this problem solved in a scientific sense,” says Raber. Don’t hold your breath, then, for a magical device that tells you you’re stoned.

http://www.cbc.ca/fifth/episodes/2017-2018/driving-high-is-the-test-for-weed-reliable

930 ET fifth estate

gb123 said:

When a police officer suspects you've been driving high, typically they ask you to perform a short roadside test that involves looking at your eyes and walking in a straight line.

Click to expand...

Physical disabilities rule out both of those options.

gb123 said:

If you fail that test, you are arrested and taken to a police station where a DRE conducts a much more involved test, 12 steps in total, over the course of about an hour.

For step 12, the police take a fluid sample, typically urine, to confirm or refute the findings of the DRE.

Click to expand...

A urine or blood sample cannot prove the level of impairment or if in fact you are impaired at all. It cannot be used to prove guilt beyond a reasonable doubt and will not be admissible.

"People get killed, so that's why we need to detect these people and test them," says Maxwell.

He says high drivers represent "the same danger as any other driver that's impaired by alcohol. The end result is the same."

He's delusional

gb123 said:

An investigation by The Fifth Estate shows the tests done by police drug recognition experts (DREs) can lead to false arrests, are prone to police bias and according to one scientific expert are no better at detecting drug-impaired drivers than "flipping a coin."

Click to expand...

...now there's a high falutin' title...

gb123 said:

But Rudolph wasn't high. He was having a stroke. Instead of getting prompt medical care, Phillips says Rudolph was arrested for drug-impaired driving and put in a holding cell for the next 5½ hours.

Click to expand...

that's a lawsuit in the making...can you fucking imagine....what are the long term consequences of waiting that long?...and there most definitely are consequences....they don't call it the golden hour for no reason...

gb123 said:

For step 12, the police take a fluid sample, typically urine, to confirm or refute the findings of the DRE.

Click to expand...

I would really like to see them try and get that from me....I'm not pissing in a cup ever again...

gb123 said:

"People get killed, so that's why we need to detect these people and test them," says Maxwell.

Click to expand...

..."these people"....pffft....

"Same danger"...... Good to know .....fuck quantifiable data

the road side bong test....maybe the answer....
you get pulled and placed in the back of a cop car and are administered a bong load of quadruple A cannabis...
then you will be asked to drive the simulator...if you pass your on your way
if you fail you are treated to lunch munchies and receive a ride home from those who serve and protect...

Farmer.J said:

He's delusional

Click to expand...

That was polite....

Re: self driving cars

It occurrs to me that if cars are smart enough to drive safely, they are smart enough to detect when they aren't being driven safely. I wonder how long it will be until cars start to take away the keys; either pull over and refuse to continue or call the police and notify them the car is being driven irratically. Maybe they can even sniff the air for alcohol or cannabis smoke.

At the very least they may keep logs the police can download to use as evidence you were driving impaired. 4 wheeled snitches.

We may have to have cars sign nda's.